Despite the omnipresence of other influential actors on the international plane, international law begins and ends with the sovereign state. The state is the heart and backbone the international legal order. But without sovereignty there is no international law. It is international law’s soul and bone marrow. Many have argued that the international legal order have undergone such fundamental challenges since 1945 that sovereignty should be replaced as the organizing principle of our world. But lets first be clear as to what it is.
The Meaning of Sovereignty
Sovereignty is the product of a gradual process of war, imperial conquest and religious rivalry that culminated in Westphalian peace treaties of 1648. That year is conveniently, yet erroneously used as the birth year of sovereignty and modern international law, also known as the Westphalian system. Its meaning can be best described in terms of its manifestations – internal- and external sovereignty. First, the state is the highest and exclusive governing authority on a given territory and over the population present (internal). No other state has authority in that space. Second, states are not subject to any higher authority in their international relations (external). In this sense, sovereignty signifies independence from other states.
Several legal principles that are fundamental to the international legal order flow from this understanding of sovereignty:
- The principle of non-intervention in the internal affairs of another state. Every sovereign State has the right ’to conduct its affairs without outside interference’. Coercion is key. As soon as a state attempts to coerce another state into doing something in a domestic matter, this principle is violated.
- The legal equality of states. Similar to the conception of individual liberty and equality, all states are equal to the law. Whether big or small, rich or poor. The most concrete evidence of this principle is the ‘one state, one vote’ rule in the United Nations General Assembly. See aso Article 2, paragraph 1 UN Charter.
- State consent is the basis for the binding legal nature of international law. A state can only be bound by a rule of international law if it has consented to being bound, even if the rule is established in customary and therefore unwritten law.
Theory, practice and Lotus
Sure, these fundamental principles can seem partly illusory in the context of geopolitics and Great Power squabbling. Yet, consent and equality remain at the very least a legal fiction that justifies the existence of such a source of law. States are still restrained in their actions the non-intervention principle, as it frames and limits their legal room to maneuver. So the much maligned Lotus position still holds, in my view: International law is a self-imposed constraint by states upon their freedom to act as they please. Those constraints were traditionally applied to relations between states to ensure peaceful coexistence. With ever increasing globalization, states have developed international rules for issues that transcend borders and the capacity, or interest, of a single state. These include international crime and environmental degradation, but also coordination in aviation. Human rights law has been challenging the internal sovereignty of states since 1945. International organizations, which have been in existence since the 19th century, have also taken a central position in developing international law. Yet, none of it is proof that the concept or the position of sovereignty has been fundamentally changed.
Sovereignty as a problem
Nevertheless, it is unpopular to use the S-word as the central paradigm of the international order. Sovereignty is rather seen as an obstacle to solving global problems and humanitarian concerns. It has been re-interpreted in the concept of the Responsibility to Protect (R2P) as also meaning ’responsibility’ of the state towards its own citizens, society and even the international community. If a state fails to live put to that responsibility, there is a moral duty for the international community to intervene. Yet, the failure translate R2P into legal principles is testimony to the enduring power of the Lotus position. Implementation would require the consent of states to undermine the basis for their own existence and legal authority. Elevating R2P to a legal principle is also dangerous, because the concept is open to abuse by the powerful states in the world. Paradoxically, when it comes to transboundary issues that no state alone can resolve, sovereignty actually becomes a counter-argument.
The myth of ’pooled sovereignty’
Some commentators speak of ’pooled sovereignty in the context of the European Union. Member states are supposed to have given up part of their sovereignty in exchange for the benefits of subjecting themselves to a legal order that can impose certain obligations on them. However, sovereignty, like pregnancy, is a binary proposition. You are or you aren’t. There is a distinction to be made, namely between giving up sovereignty on the one hand, and sovereign powers on the other. Sovereignty is indivisible, and states can theoretically revoke their consent. Sure, practice shows a different picture, but that is for another time. States can transfer the exercise of sovereign powers to such entities like the European Union without losing its independence.
In short, sovereignty is the main organizing principle of the international order, but its exact content and role is changing. The nature of modern international law is now uncertain, and the debate, therefore, continues.